Women and Justice: Keywords

Domestic Case Law

Muhammad Juzaili Bin Mohd Khamis, et al. v. State Government of Negeri Sembilan, et al. Court of Appeal Putrajaya (2015)

International law, LGBTIQ

The respondents in this case, three Muslim men with Gender Identity Disorder, filed a judicial review application at the Seremban High Court seeking a declaration that section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 was unconstitutional. Section 66 “makes it an offense for any Muslim male person to do any of the following in a public place: to wear a woman’s attire, or to pose as a woman.” The High Court dismissed the application. However, the Court of Appeal overturned the High Court’s decision and declared that section 66 was unconstitutional on the grounds that it interfered with the respondents’ right to live with dignity and right to life, that it discriminated based on gender, and that it violated the respondents’ freedom of movement and freedom of expression. The State Government of Negeri Sembilan appealed the Court of Appeal’s decision to the Federal Court. The Federal Court overturned the Court of Appeal decision on the basis that the respondents should have challenged section 66 under Article 4 of the Federal Constitution, which requires leave from the Federal Court and Federal Government being entitled to join as a party, instead of by way of judicial review. Accordingly, until such proceedings are filed and the Federal Court makes a declaration on the issue, section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 remains valid.

M v. M High Court of New Zealand (2005)

Sexual violence and rape, Domestic and intimate partner violence

This case concerns the Domestic Violence Act of 1995. Appellant sent emails, faxes, and oral communications to politicians and others, claiming that the respondent, her brother, raped her when she was 11. In Family Court, the judge concluded that the allegation of rape was unfounded and that appellant’s purpose for the communications was to shame the respondent and ruin his reputation, amounting to harassment or psychological abuse. The judge issued a protection order pursuant to the Domestic Violence Act of 1995, prohibiting appellant from further communications alleging the rape. On appeal, it was contended that, 1) the family court judge wrongly found that appellant’s behavior constituted psychological abuse or harassment, and 2) that the special conditions imposed in the protection order were unduly broad, infringing upon the appellant’s freedom of expression under the New Zealand Bill of Rights Act (NZBORA). The High Court rejected the first ground of appeal. As to the second, the High Court read the Domestic Violence Act narrowly, saying that the legislature could not have intended to pass a bill that would conflict with the NZBORA. The High Court would modify the Family Court Judge’s protection order only to qualify that appellant is not precluded from discussing the matter with other family members, attorneys, or law enforcement, thereby preserving her rights under NZBORA. The High Court also approved a Constitutional Court holding that the right of freedom of expression extends to a woman’s right to use her own name in connection with her status as a victim of sexual abuse.

International Case Law

S.A.S. v. France European Court of Human Rights (2014)

Gender discrimination

S.A.S, a 23 year old French citizen, filed an application against France to challenge the ban on the full face veil. She argued that as a woman wearing a face veil, the ban constituted a violation of her right to private life, freedom of religion, freedom of expression and her right not to be discriminated against. The French Government recognised that the ban may represent a limitation on Article 9 of the Convention i.e. the freedom to manifest one’s religion, but argued, however, that the limitation pursued legitimate aims and was necessary in a democratic society for the fulfillment of those aims. The Government argued that the ban sought to protect equality between men and women, as to consider that women must conceal their faces in public places amounted to denying them the right to exist as individuals. The Government also argued that this forced them to express their individuality only in the private family space or in an exclusively female space. The Government indicated that the practice of wearing the veil was incompatible in French society with the fundamental rules of social communication, tolerance and the requirements of “living together”. The court held that the ban imposed by the Law of 11 October 2010 was to be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” and thus no violation of Articles 8 or 9 of the Convention was found.

Dogru v. France European Court of Human Rights (2009)

Gender discrimination

Gender discrimination. The Muslim applicant, aged eleven at the material time, was enrolled in the first year of a state secondary school and wore a headscarf to school. On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes. The applicant's parents appealed against that decision to the appeal panel. The applicant claimed that expelling her for wearing the headscarf had amounted to an interference with her religious freedom under Article 9 of the Convention. The court however held that her rights were not infringed, following the Turkish case of Leyla Sahin (Leyla Sahin v. Turkey ([GC], no. 44774/98, ECHR 2005-XI) whereby it was found that secularism, as upheld by the French Government in that case, was of fundamental constitutional value in terms of the importance of the protection of women's rights. It was held that secularism was undoubtedly one of the fundamental principles of the State which was in harmony with the rule of law and respect for human rights and democracy. The court thus noted that secularism was the guarantor of democratic values, ensuring that all citizens are treated equally. The court confirmed that the freedom to manifest one's religion could be restricted in order to defend such values. It concluded that this notion of secularism was consistent with the values underpinning the Convention.